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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MARCUS R. ELLINGTON, 

Plaintiff, No. CIV S-04-0666 DFL KJM P

vs.

E.S. ALAMEIDA, et al., 

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief under 42

U.S.C. § 1983 and has requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. 

This proceeding was referred to this court by Local Rule 72-302 under 28 U.S.C. § 636(b)(1).

Plaintiff has “struck out” within the meaning of the Prison Litigation Reform Act

(PLRA). For this reason, and because his original complaint did not satisfy an exception to the

“three strikes” provision of the PLRA, plaintiff’s complaint was dismissed with leave to pay the

required filing fee in full or to file an amended complaint. Plaintiff now has filed an amended

complaint, portions of which satisfy an exception to the PLRA’s “three strikes” provision. 

Because plaintiff’s declaration submitted with his original complaint makes the showing required

by 28 U.S.C. § 1915(a), his request to proceed in forma pauperis will be granted. 

Plaintiff is required to pay the statutory filing fee in effect at the time of filing of

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his action, $150.00. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six

months and is currently without funds. Accordingly, the court will not assess an initial partial

filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty

percent of the preceding month’s income credited to plaintiff’s prison trust account. These

payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court

each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28

U.S.C. § 1915(b)(2).

As noted above, portions of the amended complaint satisfy the “three strikes”

exception of “imminent danger of serious physical injury” and state a cognizable claim for relief

under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint

identified below are proven, plaintiff has a reasonable opportunity to prevail on the merits.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action. 

The fee shall be collected and paid in accordance with this court’s order to the Director of the

California Department of Corrections filed concurrently herewith.

3. Service is appropriate for the following defendants: Rohlfing (insofar as he is

alleged to have acted as described in ¶¶ 15-17 and 36 of the amended complaint), Exum (insofar

as he is alleged to have acted in ¶ 14) and Salanger (insofar as he is alleged to have acted in

¶ 38G). 

4. The Clerk of the Court shall send plaintiff three USM-285 forms, one

summons, an instruction sheet and a copy of the amended complaint filed December 13, 2004. 

5. Within thirty days from the date of this order, plaintiff shall complete the

attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

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c. One completed USM-285 form for each defendant listed in number 3

above; and 

d. Four copies of the endorsed complaint filed December 13, 2004.

6. Plaintiff need not attempt service on defendants and need not request waiver of

service. Upon receipt of the above-described documents, the court will direct the United States

Marshal to serve the above-named defendants under Federal Rule of Civil Procedure 4 without

payment of costs. 

DATED: May 17, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

elli0666.1a.new

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MARCUS ELLINGTON,

Plaintiff, No. CIV-S-04-0666 DFL KJM P

vs.

E.S. ALAMEIDA, et al., NOTICE OF SUBMISSION

Defendants. OF DOCUMENTS

 /

Plaintiff hereby submits the following documents in compliance with the court's

order filed :

 completed summons form

 completed USM-285 forms

 copies of the 

 Complaint/Amended Complaint

DATED: 

 

Plaintiff

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